Because such a person is [generally] obliged to apply to the Injuries Board for an assessment of the value of the person’s claim before proceedings may be issued, time is suspended from running under the limitation period while the Injuries Board is considering the application (and, possibly, corresponding with the guilty respondent or his/her insurance company). Not only does time not run during that period, it does not commence running again for six months after the Injuries board issues its authorisation to the injured applicant to issue legal proceedings.

There is an exception to this regime; if the guilty respondent dies at some point the injured applicant has two years to issue legal proceedings from the date of the death of the guilty respondent. This time period, it appears, does not cease to run because the applicant has lodged an application to the Injuries Board.

It is very possible for an injured applicant to know nothing of the personal circumstances of a guilty respondent. Even the Injuries Board may know nothing of those circumstances; the Board will carry on correspondence with a lawyer or an insurance company acting for the respondent (who, in their turn, may also not know of the state of health of the respondent).

The Injuries Board claims to process applications, on average, within approximately seven months of an application. Depending on the facts of the case this may not be fast enough.

The risk of loss in these circumstances lies with the injured applicant, not with the Injuries Board.

Like all institutions, it is insulated from the effects of death.

It is worth bearing in mind that the plaintiffs will have successfully overcome many difficulties. They will have established that their defendant breached any number of duties owed to them. (See HERE for the Health & Safety Authority’s Guidance on Manual Handling of Loads. Breach of the Regulations referred to in the Guidance is a breach of a statutory duty; negligence aside, to breach the Regulations is sufficient to trigger a liability. Claims arising from back and similar injuries are some of the most intractable faced by lawyers and judges).

The legal industry in Ireland is small. It is a certainty that “Santa’s Grotto” heard of his new nickname and was intended to hear of it. It was, objectively, calculated to curb his “excesses” in the award of damages to personal injury plaintiffs.

It is an issue of interest to know which of these persons, the judge or the barrister, was right about the value of personal injury claims, but it is much more timely to ask; with a barrister like that strutting his stuff, how can any reasonable person think that Ireland has or had an “Independent Legal Profession”?

Sure, he was independent of the judge, but whose spokesperson was he?

In the provision of services to public authorities there is an exception to the obligation to place the business out to tender; the exception is legal services. This is why Government and State agencies can, without a blush, allocate substantial earning opportunities to the big Dublin firms of solicitors (some more than others) even where the work is not very esoteric or specialised. It is ridiculous to suggest that these firms are “independent”.

Consequently, the legal profession is not independent. Asserting it is does not make it so.

In such a spirit, can Judge Kelly’s remarks about the lack of a mechanism to recover excess tolls (if such they be) charged on the M1 motorway, fail to provoke the attentions of our benefactor Mr. KenMore?

Once again, the remedy for such social ills is to hand; introduce forms of proceedings in court called Multi-Party Actions. These are commonly called “class actions”. They permit a plaintiff to commence proceedings against a defendant, not just for his/her own benefit, but for the benefit of a class of persons, the plaintiff being just one.

This could be done relatively easily and quickly. The missing ingredient is, and was, political will. Nothing else is missing.

You will shortly be Taoiseach. I know that my voice is not foreign to you. I have an accent (metaphorically speaking) like Dermot Gleeson SC. That should alarm you but I know it will not. This is not because you are schizophrenic (which you are), but because, in your field, you need to keep talking and the explication of process uses a lot of words. Lawyers can elaborate process and consequently generate words. Like an oasis in the desert they seem to offer life (political life, in your case) allowing you to hold the floor, to occupy space of every kind, but principally space in the minds of others.

There is no guarantee that this is of value of the listeners. Perhaps you disregard this, at least for a time. That is a mistake. Before he was chairman of Allied Irish Banks Dermot Gleeson SC was legal advisor to Michael Noonan, who was brought to the point where he said he would eschew legal advice if he had his life (political, again) to live over. Maybe he will (eschew legal advice AND live his [political] life over again).

The mere occupation of space is a miserable ambition. Look at the outgoing government.

This letter is to ask you to repudiate what is graphically currently known as “stuff”. Stuff is process; it is the surface. It is the shiny trivia of life.

I propose that you look instead to principles not process. I know nothing of the principles of banking beyond what commonsense might suggest to me. I do, however, know something of what is fair and I write this letter to suggest that you commit to fairness in this election. Fixing a bank will not secure fairness, but fairness, in principle, is a requirement to secure good banking.

Here are some easy reforms to bring fairness to the people of Ireland;

A) Restore the limitation period for personal injury plaintiffs from two to three years;

B) Repeal the Personal Injuries Assessment Board Act of 2003;

C) Repeal the provisions of S. 10 of the Courts and Civil Liability Act 2004;

Michael McDowell SC wanted to reduce the limitation period for personal injury plaintiffs from three years to one year. Arguably three years is unfair; in matters of contract the period is six years, but I am not urging that you decide on that; just that you bring it back to three years. For many injured people it is no difficulty to take action within three years of their being injured, but there are many exceptions. On a question such as this, every effort should be made to ensure that nobody is shut out of justice. To close the door of the Four Courts (yes, it happened, literally) to injured plaintiffs is to favour reckless free riders over innocent people who have no social organization to represent them.

REFORM 1: Why should the limitation period be three years rather than two?

ANSWER: A limitation period exists to protect society from old stale claims. If a claim is old and stale a defendant may be unable to rebut the evidence of the plaintiff due simply to the passage of time. If matters had been addressed in speedy fashion a defendant might be able, by evidence, to show that it is not liable for the plaintiff’s injury or that the plaintiff was contributorily negligent to a high degree. However, this is hypothetical. Most cases of personal injury (car crashes etc.) are immediately known to a wide circle of people, including the “defendant”. In those circumstances the plaintiff’s delay is irrelevant to the defendant’s ability to defend itself.

On the other hand, a plaintiff needs time to start his/her proceedings. There are many obstacles to a plaintiff in this regard. The injury incapacitates the plaintiff; he or she cannot get the time, energy or opportunity to instruct a solicitor. The plaintiff may have money problems. The plaintiff, compared to the defendant, will often know less of the injurious event than the defendant. The plaintiff needs time to gather the evidence.

This point is seen in the extreme in cases of medical negligence. The courts have opined that it is professional misconduct for a lawyer to issue proceedings in medical negligence cases without the back-up of an expert’s report confirming the negligence. How long does it take to get that? It can only be sought after the medical records have been received from the putative defendant. Thus, for such a plaintiff, gathering the evidence requires force of character; the recovery of medical records; the choice of expert to advise on the issues and the receipt of an opinion written, often, by a busy professional to a very high standard. None of these things can happen quickly.

The choice should not be between two years and three years, but between three years and some longer period.

REFORM 2: Why should the Personal Injuries Assessment Board Act 2003 be repealed?

ANSWER: There are several reasons;

a) PIAB favours defendants; the system is mandatory for plaintiffs and voluntary for defendants;

b) PIAB generates delay for a plaintiff in the resolution of his/her problems;

c) PIAB facilitates the decay or dispersal of evidence exclusively in circumstances that favour the defendant and hamper the plaintiff.

d) PIAB is becoming irrelevant save to the extent of the effects referred to at a), b) and c) above.

REFORM 3: Why should the provisions of S. 10 of the Courts and Civil Liability Act 2004 be repealed?

ANSWER: It hinders the issuing of proceedings for personal injury in timely fashion. Compliance with S. 10 requires the injured plaintiff to gather substantial quantities of evidence and instruct lawyers relating to same, before issuing proceedings. A Personal Injury Summons is a substantial lengthy document and not readily compiled at speed. In lawyers’ language, could anything be more calculated to favour defendants compared to (personal injury) plaintiffs? For upwards of fifty years before 2004, court rules permitted the quick issuing of a Plenary Summons for a personal injury claim. Thereafter, the plaintiff had to serve a Statement of Claim with proper details of the claim pleaded. However, any delay in so doing was amenable to control by the court; it was not subject to the severest sanction – the expiration of the statute of limitation period. It is that sanction that now hovers over every personal injury plaintiff and is brought closer by the provisions of S. 10.

There are, it seems, legal chicanes; if a law fails to get mentioned (or is mentioned) it falls. It is no longer law.

What of the Public Health (Ireland) Act of 1878 ((41 & 42 Vict.) c. 52)? It was recited in the First Schedule of the Statute Law Revision Act 2007 and was, consequently, retained as law in Ireland.

Previously. Section 54 of the Public Health (Ireland) Act 1878 was repealed by Section 6 of the Waste Management Act 1996 and the Fifth Schedule of that Act.

Before that, Section 54 of the Public Health (Ireland) Act 1878 was specifically brought into force in the County Health District of Dublin by the provisions of S.I. No. 310/1970.

Consequently, Section 54 of the Public Health (Ireland) Act 1878 appears to be still in force in [South Dublin County], [Fingal County] and [Rathdown County]. (County Dublin, excluding the City of Dublin).

The Public Health (Ireland) Act 1878 was the enabling provision for the Dublin Corporation Bye Laws of June1899 referred to HERE.

What happened, then, to those Bye Laws on the repeal of Section 54 of the Public Health (Ireland) Act 1878 in 1996?

They were, in the absence of any saving provision, implicitly revoked.

What alternative provision did Dublin City Council introduce? It had that power under Section 37 of the Local Government Act 1994.

Here is what Section 54 of the Public Health (Ireland) Act 1878 says on the subject:

“54. [Where the [district council] do not themselves undertake or contract for The cleansing of footways and pavements adjoining any premises, the removal of house refuse from any premises, the cleansing of earthclosets, privies, ashpits, and cesspools belonging to any premises, [A district council] may also, and when required by order of the Local Government Board shall, make byelaws for the prevention of nuisances arising from snow, filth, dust, ashes, and rubbish, and for the regulation of the keeping of animals on any premises, or for the prevention of such keeping, so as to be [prejudicial to health].”

This legislation clearly states that the snow is a nuisance. It is a public nuisance if it is on the public pavement. If it is not cleared off by the adjoining occupier, it is being maintained by him/her. Consequently the occupier is answerable for injury sustained by passersby who fall on the snow.

HERE is a post we published then.

It reads:

“Many people have been injured in Ireland on public pavements due to the recent snow and ice. Public pavements are “public” because they have been “taken in charge” by the local authority. (If they are not taken in charge they are private pavements.)
It is settled law in Ireland that a public authority is not liable for damage arising from “non-feasance”. This means that, if the public authority fails to exercise a statutory power, and loss is sustained which would have been avoided if the power had been exercised, the public authority is not accountable in law for that failure.
(This does not mean that public authorities are not liable for all failures. They are liable to the same extent as ordinary persons for failure to act; that means that a Plaintiff must prove a duty of care resting on the public authority and loss arising from breach of the duty or care.)
Consequently, a failure by a local, or other, authority to clear snow and ice from roads or footpaths, generally, is an act of non-feasance and attracts no legal liability.
Private persons (adjoining owners and occupiers) have, generally, no liability in common law to clear public roads or pavements of snow and ice. They may have a particular liability; if they place the snow or ice on the road or pavement, or create it in the first place. These acts would constitute a public nuisance. For instance, if the owner or occupier transfers a snow burden from his premises onto the public pavement, the presence of the snow is not “natural”. It is man-made. The owner or occupier had created the condition. For further instance, if the owner or occupier pours hot water on the pavement to melt ice already there, and the water freezes, the new ice will have been created by the owner or occupier.
If the servants or agents of a public authority create a public nuisance, the authority will be liable on the general principles of nuisance.
In the City of Dublin a particular liability rests on owners and occupiers (including local and public authorities) adjoining public pavements to clear the pavement of snow immediately on the cessation of the snowfall. The liability was created by bye-laws of June1899. The bye-laws do not expressly create an entitlement to compensation for persons injured on such un-cleared pavements, but the courts have consistently interpreted such statutory obligations as creating and conferring such entitlement.
The liability for private roads and pavements will be covered by either or both of contractual duties, if any, and the Occupiers Liability Act 1995.”

It also says:

“A lawsuit is a civil action brought before a court of law in which a plaintiff, a party who claims to have received damages from a defendant’s actions, seeks a legal or equitable remedy. The defendant is required to respond to the plaintiff’s complaint. If the plaintiff is successful, judgment will be given in the plaintiff’s favor, and a range of court orders may be issued to enforce a right, award damages, or impose an injunction to prevent an act or compel an act. A declaratory judgment may be issued to prevent future legal disputes.”

We could go on and on and on about the topic, but this is a blog and we should limit ourselves to the practical.

A typical lawsuit has its origins in a Road Traffic Accident. (“an RTA”). A typical RTA will involve two motor cars. The drivers may have bona fide differing opinions of the causes of the accident. One driver may have sustained more damage than the other. These circumstances may drive the lawsuit.

There are other circumstances that drive a lawsuit. Greed can drive it. Desperation can drive it. Lack of scruples (a sub-set of greed) can drive it. Ambition can drive it.

Most lawsuits are settled. The judicial system is under-resourced to adjudicate on every lawsuit filed in court.

The statistics in the Annual report of the Courts Service of Ireland do not properly reflect this. Take the figures for the High Court civil cases in 2008. There were 22,861 proceedings issued in that year. Allegedly the court made 25,734 orders and there were 4,631 settlements. These two latter figures are categorized as “Cases disposed of”.

In truth the figures for commencement of proceedings and cases disposed of are unrelated. This is so notwithstanding that most proceedings would still be in being one year after being issued. The Court Service statistics take no account of cases commenced and then discontinued. These cases, more often than not, have been settled.

The litigants, with the assistance of the legal profession, settle their cases. (At lunch-time outside the Law Library).

The implications of this, for litigants, is profound. It implies the process is a rational process (on the whole). It is rational in the way a game of chess is rational. The rules and principles are sufficiently clear and well known that the outcome can be predicted with greater or lesser certainty. It is the function of the judges to preserve the integrity of the rules and, exceptionally, expand on them.

Nevertheless, litigation is uncertain. That may mean it is uncertain to the extent of 10% or 50%. The burden of proof in civil law is on the balance of probabilities. To win, a litigant must persuade a judge that what is alleged by that litigant is, on balance, more likely than what is contended for by the opponent.

Failure to settle a case, or failure to settle until “the door of the court” may be caused by a failure to assess where the balance in the case lies, or it may be evidence of a deferment of settlement to the day of trial to maximize the compensation discount a defendant would like to get from an injured plaintiff.

Whatever the case, those causes are in principle, also assessable.

The equivalent for motorists is more extensive. However, any amount of rules will be wasted if a driver has a defective attitude to his/her “rights”.

Long before the motorcar appeared, the roads were used by pedestrians and animals, particularly horses. It is within living memory that a large cattle market thrived at the top of Prussia St. on the North Circular Road in Dublin and the cattle were herded down the NCR to the docks for shipment to, usually, the UK. All that is gone now.

What motoring “entitlements” could be asserted in circumstances like that?

With the departure of the animals, only pedestrians remain to hinder the motorist. Pedestrians, being more malleable and responsive than animals, avoid offering themselves as a hindrance, for good reason.

Who has not been challenged by a motorist for having the temerity to walk across a T-junction, obstructing a turning car? Most pedestrians anticipate the car and yield to it, although the right of way generally rests with the pedestrian.

What hope, then, that a motorist would anticipate a momentary error by a pedestrian in a “refuge” on a dual carriageway? The self-same driver is, after all, in the “fast” lane as he/she zips past within inches of the pedestrian.

The fact is, a driver is obliged to drive in such a manner and at such a speed as to avoid a pedestrian who MAY step out onto the roadway. That implies that it is an obligation to SEE the pedestrian and, probably, to LOOK AT the pedestrian.

We see much of this in McDermott v McCormack [2010] IEHC 50.

The Defendant driver admitted he did not see the Plaintiff pedestrian. The Plaintiff was an admirable witness, given that he was thrown into the air by the Defendant’s taxi. The Defendant gave evidence of the Plaintiff’s head hitting his windscreen. The judgment does not record the Plaintiff’s evidence in detail on the point, but if it was tendered it would probably have been in terms of the Defendant’s windscreen hitting him on the head.

The case looks like one of excess of ambition by the defence. They were in possession of a report from a hospital showing the Plaintiff had been very drunk when the accident happened, but, as the judge remarked;

“…He was an alcoholic. Unfortunately, he still is. That does not disentitle him to damages.”

In the event the court found (without reference to the Green Cross Code, it not being law), the Plaintiff was 50% responsible for the accident (there was no crossing point on the road at the point of the accident) and reduced the damages from €266,758 to €133,379.

For more information see our Colour Supplement HERE

Under the European Convention on Human Rights, persons have the following rights;

Article 8: The right to respect for home (private and family life)
Article 2: the Right to life;
The First Protocol, Article 1: the right to protection of property.

Under the European Convention on Human Rights Act 2003, the Courts are obliged to interpret Irish law to conform with the Convention.

In Guerra v Italy (1998) 26 EHRR 357, toxic emissions from a factory injured many nearby residents and killed some. The ECtHR found that the absence of information on the effects of living near the factory breached the Applicants’ right to respect for home under Article 8 of the Convention.

Consequently, where a failure by public authority would result in a breach of an Article of the Convention, it would be incumbent on the authority to act and the authority would be liable in those circumstances for any failure to so act.